Basically, are third party submissions (35 U.S.C. 122(e)) a proper subset of protests (37 CFR 1.291) in terms of what evidence and arguments can be presented?

I have the opportunity to file a protest on an unpublished continuation application. Although I don't know the claims, I plan to make general arguments against patentability (103, 112, IC) based on claims of the issued parent application. After doing so, I assume there is no benefit to filing a third party submission?

1 Answer 1


After publication, when you can see the claims, you might find that the references you previously submitted are not as on-target as you assumed and end up filing both. A consideration might be that a third party submission can be done anonymously.

  • 1
    Good point about newly seen claims providing more information. Though I will say, both protests and third party submissions require that a "real" person signs off on them (verifying that they comply with the rules), though the real party in interest does not have to be identified in either case (thereby "anonymous").
    – user132162
    Apr 24, 2018 at 1:08

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